| Comment Number: | EM-017475 |
| Received: | 3/10/2005 2:20:05 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
March 10, 2005 DoD NSPS Comments , DoD NSPS Comments: I write to express my concerns about changes to work rules in the Department of Defense (DoD). The proposed regulations, known as the National Security Personnel System (NSPS), were printed in the Federal Register on February 14, 2005. This message will be sent to both DoD and my representatives in Congress. I am angry that these proposals seem to treat the employees who help defend our country as the enemy. Most DoD employees work hard and are committed. I believe that mistreating the employees will hurt the agency?s mission. I am very upset by NSPS. This system will change the way workers are paid, evaluated, promoted, fired, scheduled, and treated. These rules would create a system in which federal managers are influenced by favoritism rather than serving the civil concerns of the American people. Comments Concerning Docket Number NSPS-2005-001 and Regulatory Information Number RIN 3206-AK76/0790-AH82. Supplemental/Dates/pg.7552 Given the delays in today?s mail service requiring ?receipt? no later than 16 March 2005 effectively reduces the required comment period by up to 10 or more days. This serves to deny the public from full participation in the democratic process. Supplemental/Authority to Establish a New HR System/ pg.7554 The collaborative process referred to in this section was a fraudulent attempt to pull the wool over Congress? eyes. As one who attended the joint DoD/OPM/Union Coalition briefings I can attest that the process was anything but collaborative. The process dictated by DoD and OPM was nothing more than a series of briefings without any detailed ?information sharing? which would have allowed for a true collaborative effort. As for focus groups and town hall meetings, Union participation was discouraged and sometimes blocked by the DoD facilitators. Employee representatives were afforded only the opportunity to participate as employees. Not as the elected representatives charged by law with representing the interests of represented employees. DoD and OPM refused Union participation in the developmental working groups. Any claim that this was a collaborative process with employee representatives is without merit. In the middle of page 7554 of the Supplemental it states inpart that DoD and OPM are not limited by ?any? provision of Title 5 relating to methods of ?reducing overall agency staff and grade levels?, yet on page 7574 under the heading E.O. 13132, Federalism, DoD and OPM state that the proposed regulations would not have any ?financial or other affects on the states. Clearly the intent to re-organize and use this new authority will have profound impact on local communities whether by changes in staffing levels or grade levels the potential for local tax bases are real. Supplemental/General Provisions ? Subpart A/pgs. 7556,7557,7558 Under this subpart the DoD is in violation of the legislation the NSPS at 9902(a). Under this provision of the legislation not only initial but subsequent implementing regulations/issuances are to be ?jointly? issued. Under Subpart A of this supplemental and throughout the implementing regulations deference is given to the DoD to dictate not collaborate with either the OPM or employee representatives. This so-called collaborative process is in violation of the requirements of Title XI, Subtitle A, Chapter 99, Subchapter 9902(a). Apparently the DoD and OPM have collaborated to issue sufficiently vague regulations to assure limited Congressional and Judicial oversight, as OPM Director James recommended in her 9 March 2004 correspondence with Secretary Rumsfeld. I am appalled by Congress? willingness to secede its authority by legislation to the Executive Branch of government. Furthermore, these proposed regulations are an attempt to codify the very same concepts that many congressional leaders rejected in February of 2004. After all of the so-called focus and working groups the concepts represented by these proposed regulations have not changed. Neither the DoD nor OPM listened to employees or their Union representatives. The intentions established by the February 2004 concept paper and the proposed regulations are the same. I find it hard to believe that any reasonable person could summarize from the focus groups, working groups and union collaboration the results contained in these proposed regulations. On page 7557 of the supplemental under the heading ?Continuing Collaboration,? the continuing collaboration has the effect of eliminating impact and implementation bargaining over procedures, appropriate arrangements and reasonable accommodations for affected employees. This is in direct opposition to 5 USC Chapter 9902, which ensures collective bargaining rights. National Consultation exists in present law under 5 USC Chapter 71 and does not attempt to take the place of bargaining at the level of recognition, where impacts are felt and best understood. The elimination of impact and implementation bargaining leaves employees without an orderly and accountable process to participate in the shaping of good workplace procedures. It leaves no means to enforce even the protected provisions contained in Chapters 2301, 2302 and other remaining applicable government-wide laws and regulations. These laws were meant to protect employees from certain personal prejudices, arbitrary and capricious decisions that, when inflicted upon employees, work against rather than advance mission requirements. Under 9901.107 ?Relationship to other provisions? on page 7578 of the supplemental specifically states that provisions of Chapter 71 are not waived but are modified to be in consistent with the regulations issued in this regulation. These so-called modifications have the effect of modifying to such a degree that any remaining provisions are unenforceable. Devoid of transparency and accountability, the original intent of Chapter 71 becomes a joke and will not allow for any meaningful advancement of good government based upon the input of the professionals performing the day to day work that produces mission accomplishment. Concerning collective bargaining rights Chapter 9902 (b)(4) clearly establishes that the parameters surrounding the establishment of this human resources management system are to be found in established law. Not the authority to render established law unenforceable. Chapter 9902(b) (4) may authorize modifications and adjustments in processes, but it clearly does not authorize the wholesale elimination of established law. Any modification must be consistent with provisions of law most specifically inpart ?subject to any . . . exclusion from coverage or limitation on negotiability established pursuant to law.? DoD and OPM were not empowered with the legislative authority to establish new law. If that was the Congressional intent then it is my belief that Congress exceeded its Constitutional Authority and walked away from its Constitutional duties and ceded legislative authority to the Executive Branch. That said with respect to ?established law,? such adjudicated provisions as impact and implementation bargaining over the exercise of retained management rights must continue to apply to collective bargaining as provided for in Chapter 71, because Chapter 71 is established law. Furthermore under supplemental 9901.107(b) (1) on page 7578, ?DoD employees are deemed to be covered by the applicable chapter notwithstanding coverage under a system established under this part.? Also at 9901.107(b) it is made clear that Chapter 71 is not waived and I submit that any modification must be consistent with that provision. This same principal requirement remains applicable to other established provisions of law as adjudicated such as Weingarten rights and Douglas factors. Supplemental/Subpart B-Classification/pgs 7578, 7579 9901.201 Purpose. This supplemental references merit principals with respect to equal pay for equal work while at the same time indicating that this will be accomplished in conjunction with the pay for performance provisions. Given that the pay for performance provisions rely on subjective criteria which defy merit principals, the new classification system fails to uphold the concept of equal pay for equal work. Consider subpart A at 9901.103. It defines performance as including such subjective criteria as ?including an employee?s behavior and professional demeanor (actions, attitude, and manner of performance).? Such subjective criteria leave supervisors the option of playing favorites and leaves employees without confidence in the performance management system. What makes such an intolerable situation worse is the proposed non-grievability of such actions. Employee morale will inevitably suffer and workplace conflicts will increase, at the expense of mission accomplishment. Supplemental Subpart C/ pgs 7559, Regulations/ 9901.304 Definition, pg 7581 Unacceptable performance is defined as in 9901.103, which allows for an unacceptable rating to be given to an employee who fails to meet only 1 of his or her performance criteria. This allows supervisors to set unattainable goals and expectations that may be subjective and influenced not by the capabilities of the employee based upon merit principals but by personal preference, prejudices, style or even animosity. The fact that performance ratings will no longer be grieveable, or independently arbitrable, increases the risk of abuse. Employees will be subjected to the moods and unrealistic expectations of supervisors, resulting in a performance system based upon patronage and favoritism, rather than real performance. Regulation/ 9901.313, pg 7581 Pay cannibalism of the aggregate with unequal shares being given to employees performing equal work is a direct violation of merit principals and will lead to inefficiencies because of workplace favoritism and performance disputes. It is only human that employees will perform at their highest when treated equally and at their lowest when the expectation of recognition for their efforts are dashed by unequal treatment or unequal distribution of pay. Performance Based Pay/ Regulation/ 9901.342/pg 7582, Supplemental/pg 7560 The fact that overall departmental pay will remain the same in the aggregate guarantees failure for the pay for performance concept. The amounts available in a pay pool are dependent upon what is left after the level above has received its shares. It establishes a trickle down effect much like the private sector where CEOs receive a disproportionate amount of compensation in comparison with the average worker (as much as 4000% more). That is not equal pay for equal work. Even where pay formulas may be developed that protect the aggregate as it trickles down, the assignment of different shares for equal work based upon subjective criteria is not equal. Grooming of employees and favorable assignments of work will continue to violate merit principals and lead to noncompetitive advancements. The most effective enforcement tool of merit is the negotiated grievance process. The proposed regulation eliminates this in favor of some yet to be written internal review process, effectively allowing the fox to guard the hen house. Supplemental/Reduction in Band/pg 7561 This provision for arbitrary pay cutting allows supervisors to inflict harm based upon personal prejudices. It allows for more than a 10% reduction in base pay without the due process safeguard of the negotiated grievance procedure. Supervisors will be allowed and in some cases required to balance budgets using the pay of employees rather than efficient management skills. Furthermore supervisors will be able to use pay as a tool to advance personal agendas and punish dissenting employees, including whistle blowers, without employees having an independent avenue of redress. Merit principals will become unenforceable when supervisors can protect themselves from disclosure with threats of financial loss. Supplemental/Premium Pay/pg 7561 The lifting of current premium pay schedules is an invitation for abuse. It will allow the Department and its Components to hide true costs by denying employees appropriate compensation for holidays, overtime, Sundays and hazardous duty. How premium pay provisions affect national security is a mystery. This is a purely economic provision which will let the DoD deny appropriate compensation for overtime, shift pay, night differential, Sunday work, holidays and other hardships. If we plan to treat civilian employees as deployable assets, hazardous duty and other forms of premium pay should not be optional. Supplemental/Performance Management-Subpart D/pgs 7561, 7562, 7563 The DoD is operating from the assumption that the current performance management system is burdensome because of its ?actual and/or perceived inflexibility and strict adherence to written elements and standards.? Changing relatively simple and established criteria to enable supervisors to change the assigned mission of individual employees verbally or otherwise (see example pg 7561) as needs arise will do nothing but complicate performance management for managers, supervisors and employees. It will lead to lower morale, dissention and increasing perceptions of favoritism, with the mission suffering in the long run. If supervisors are not able to operate within the existing system because of ?perceived inflexibility,? it is hard to believe that those same supervisors will be able to manage better using some newly applied system which is more complicated and relies on unwritten and subjective behavioral criteria. As with other provisions of this regulation, DoD managers will be allowed to make it up as they go along. Accountability will be passed to the employees when an error in judgement negatively impacts the mission. Management accountability will be lost when non-measurable personal perceptions involving differing styles, political, sexual and religious preferences and physical abilities are allowed to rule the day. Giving supervisors the additional tool of reducing the basic pay of an employee lets personal agendas creep into the performance management system. It has the potential for establishing an atmosphere of animosity, pay back and patronage. Unscrupulous managers and supervisors will be able to pick on individual employees and use this new power to intimidate and manipulate individual employee performance. This will have a chilling effect on government accountability because potential whistle blowers will be silenced for fear of their job and/or pay. Government accountability depends on the reporting of fraud, waste and abuse. When employees no longer have the confidence to step forward with critical information due to fear of reprisal they will be silenced and government accountability as well as the mission will suffer. The ability of employees to be treated fairly and equitably depends upon an accountable and transparent system which protects all employees from fear of reprisal. It also depends on a due process system that allows for vigorous advocacy on behalf of employees and independent review of management decisions based upon established case law. The supplemental information stating that the present system is one of pay for longevity rather than performance is false and misleading. Employees do not receive ?step? pay increases for unacceptable performance, no matter what their seniority. Supervisors are already required to hold midterm reviews with employees. The establishment of a system which gives even more weight to these feedback sessions is folly, given that the DoD has admitted its managers and supervisors are incapable of following today?s simpler system. Supplemental/Staffing and Employment-Subpart E/pgs. 7563, 7564 Allowing for ?perpetual temporary? employees, who are denied certain rights and benefits opens the door for more abuses. Such a shadow workforce will hide the true cost of doing business. Furthermore, the ability to arbitrarily groom and select employees for conversion to permanent status is not consistent with merit principals. Since temporary employees are afforded less appeal rights, such a conversion system is ripe for abuse. Allowing for such conversions without re-competing will significantly reduce the pool of potential public servants. Qualified candidates will be discouraged from applying because of the temporary nature of the initial appointment. This has the added impact of prolonging probationary periods, further denying due process rights. Supplemental/Workforce Shaping-Subpart F/pgs. 7564 The representation that performance is not adequately addressed by the present RIF rules is misleading. Performance scores already affect standing on most DoD retention registers. By grouping veterans with other career employees rather than separately the proposed regulations allow for the retention of non-vets ahead of vets. Since the implementing regulations have yet to be written there is no way of assessing the true impact upon veterans? preference, except that it will clearly allow for lessening RIF preference for non-disabled veterans. The supplemental states that the regulations will prohibit the use of competitive areas to target an individual employee. But it allows for the establishment of competitive groups to include pay schedule, occupational series etc. in order to narrow the affected area. This ability to target specific employees by targeting smaller groups of employees has the potential of violating merit principals when qualified employees exist either outside of the ?competitive group.? This enables targeting and eliminates fair competition among qualified employees within a geographic area. Supplemental/Adverse Actions-Subpart G/pgs. 7564. 7565 This provision turns due process on its ear and provides for a kangaroo court. There is no way for even-handed justice to prevail On one hand, with respect to performance management the DoD states that the communication of performance expectations is key to effective performance management. But on the other hand, the avenues for holding managers and supervisors accountable by employees are being narrowed, with grievances being eliminated altogether. The concept of judicial review as part of a system of checks and balances is effectively eliminated by new limits imposed on the authority of the MSPB for mitigation or corrective action orders. The limits will apply even where an ALJ?s decision may be based on established case law, reflecting long-respected standards of fairness and proof. The introduction of ?Mandatory Removal Offenses? (MROs) comes without justification and without any illustrative examples. As proposed, the Secretary will have the power to declare any number of offenses a threat to national security. Anyone accused of an MRO will be penalized with removal and will be denied the possibility of mitigating the penalty in an MSPB appeal. There is no guarantee that progressive/constructive discipline will even be a consideration where the Secretary, a political appointee, has sole authority to mitigate a penalty. There is no binding standard for the Secretary to base his/her decision on. The shortening of advance notice and reply periods acts as a mechanism to restrict and, in some cases, deny due process. Considering the proposed restrictions on rights to information and on the representative?s ability to vigorously challenge the authority and the veracity of evidence, due process will be compromised. Reducing notice and reply periods is one thing, but having them run concurrently shortens the time periods by even more. This is a smoke and mirror provision. The proposed regulation would make performance improvement periods optional. This will deny employees adequate opportunity to improve their performance. The option of firing an employee without a fair chance will give managers and supervisors further immunity from accountability. Supplemental/Appeals-Subpart H/pgs. 7565, 7566, 7567, 7568 Under subpart F the supplemental states that it retains placement programs but under subpart H it eliminates oversight by making actions taken under those programs not appealable to MSPB. This is another instance of denial of due process. The supplemental states that the NSPS law ?provides that current legal standards and precedents applied by MSPB under 5 USC, chapter 77, continue to apply, unless such standards and precedents are inconsistent with legal standards established under this subpart.? This is a misstatement where standards and precedents affecting provisions of merit principals are involved. Legal analysis, standards and tests established by legal precedents used by the MSPB to adjudicate cases having impact on provisions of Chapter 2302 cannot be either waived or modified. Throughout this subpart the DoD attempts to modify and change those same precedents in violation of Chapter 9902. The DoD unilaterally decided to change the standards applied by MSPB in adverse action cases. This goes beyond its authority granted by Congress. Once again the DoD is writing new law instead of applying established law as required. Instead of challenging an administrative law judge?s decision by filing an exception, the DoD reserves the right to unilaterally modify and/or reverse such a decision and create new criteria that the MSPB must apply. This reverses the long held belief in separation of powers. DoD has given itself legislative, executive and judicial powers! Limits on discovery and interrogatories, along with the denial of relevant late discovery do nothing to get at the truth in any given case. It only acts as a method of denying due process--exactly the opposite of what DoD says it is protecting and what the law requires. The supplemental makes it clear that supervisors do not have to give employees written instructions as to the performance expected of them. It states, ?Moreover, MSPB may not reverse the Department?s action based on the way a performance expectation is expressed, as long as the expectation would be clear to a reasonable person.? This is another way of avoiding accountability and passing the buck. Changing the standard of evidence in cases, by raising the bar for employees while lowering the bar for managers and supervisors, is not even-handed. It compromises fairness. Cases of performance and misconduct are distinctly different and should be treated differently. Under affirmative defenses there will be an assumption of guilt over innocence where the notice of facts is assumed, especially when discovery is limited. The reason for due process is to allow for the adjudication of facts that are in dispute. Without sufficient information to challenge the alleged facts, the employee cannot receive due process. By asserting final penalty review, the DoD again places itself above the MSPB. Under ?attorney fees,? the standard for recovery of fees will be narrowed, based not on whether an employee prevails, but on whether the action was ?clearly without merit.? No fees will be paid if management based its decision on facts that it knew, rather than facts it should have known at the time. This relieves the Department of due diligence with respect to investigations and the appropriate application of penalties. Attorneys will be discouraged from representing genuinely wronged employees. The savings provision in the supplemental is misleading because it does not make it clear that the standards to be applied in pending cases are the standards of the new regulations. This is unfair and will cause harm by applying new rules which employees and their representatives were not aware of at the time the action occurred. This retroactive provision is inherently unfair. Supplemental/Labor-Management Relations-Subpart I/pgs. 7568, 7569, 7570, 7571, 7572, 7573 The supplemental misstates the provisions of chapter 99 in that it gives equal weight and in places more weight to DoD issuance than authorized. Pursuant to law means ?established law? not law newly created by DoD. Chapter 9902(d) establishes Nonwaivable Provisions of law. Among these are 5 USC Chapter 71. Chapter 9902(m) grants the Secretary and Director the authority to ?modify and adjust,? not to waive or render unenforceable the provisions of established law as contained in Chapter 71. In the definitions section the DoD modifies several definitions as understood and applied in the enforcement of established law among those are the terms: collective bargaining, conditions of employment, and grievance. These changes in definition allow for the wholesale modification of established law nonwaiveable within the meaning of Chapter 99. This subpart forces the elimination of existing contract provisions over a wide range of subjects without establishing any benefit to National Security. This elimination of orderly processes established in collective bargaining agreements will lead to confusion, workplace conflict and injustice, which will discourage rather than encourage public servants in the daily accomplishment of their mission. This is exactly the opposite of the DoD?s stated goal. Attempts to bring contract provisions into compliance will be met by claims of non-negotiability based upon yet unknown DoD philosophies in conflict with established law. In part, collective bargaining is a method of enforcing and advancing a management decision by making sure that processes used are effective and not in conflict with existing laws such as 2302 and established management rights in accordance with Chapter 71. This mechanism ensures the orderly and effective application of management decisions affecting both employees and effective accomplishment of missions. Collective bargaining is the sum of its parts and when certain parts are missing, as with integral parts of a machine, the machine will not operate as intended or not operate at all. 5. Employee Rights Under ?employee rights? it implies that employees acting on behalf of other employees through the Union are protected as contained in Chapter 71. But this protection is modified by the regulations to discourage advocacy on behalf of individual employees, a collective group of employees and even in the vigorous enforcement of law or management directives. This will have a chilling effect on government accountability and efficiency because fear of reprisal has been written into the regulation. 6. National Security Labor Relations Board The NSLRB is doomed to be a political body subservient to politics instead of law. This body has been given the authority to override Congress? collective will by instituting a new set of rules based on either political or ideological agenda. The common defense of our nation is not political. We are a nation ruled by law as established by Congress. Political appointees must not be empowered to create law. 7. Management Rights The expansion of management rights is not just an expansion of rights but the restriction of employees? and their elected representatives? rights. A key loss is the employee?s right to participate in shaping orderly processes that affect working conditions. Orderly processes offer great assistance to managers and go a long way in diffusing workplace conflicts that can interfere with mission accomplishment. Having the work rules established ahead of time and applied regularly helps employees understand what is expected of them. The Department?s claim that bargaining over procedures does not allow for quick action is not persuasive. This provision goes on to restrict managers and supervisors from effectively communicating mission requirements to their employees. This will have a chilling effect on managers? ability to give and receive necessary information before making decisions regarding assignments of work. 11. Representation Rights and Duties The DoD?s resistance to Union attendance at formal discussions by claiming a balancing act is ridiculous on its face. This provision is nothing more than an admission that managers wish to negotiate directly with employees and by-pass its obligations and contractual commitments. Backroom deals with employees will result without consideration of the impact on the rest of the employees in a unit. Eliminating the Union?s institutional rights to attend EEO meetings also eliminates the rights of all the other employees in the bargaining unit to receive equal treatment under their negotiated agreements. It will lead to EEO resolutions that impact on other employees not represented at the settlement table. Exempting the Inspector General and the various investigative services from Weingarten denies employees the right to representation and allows for intimidation. Without a representative to clarify questions and assist in establishing facts that may not otherwise be considered, the employee will be unjustly harmed. Not allowing employee representatives to vigorously act as an advocate for employees by holding them to a standard less than ?flagrant misconduct? effectively denies the employee due process and supplies a disciplinary tool that will circumvent the law against reprisal. The availability of information is already restricted by the FLRA?s particularized need test. The further burden of needing to research data bases for information already available to management only lessens effective advocacy on behalf of employees. Instead of representing employees and their interests the Union will be spending its time doing perpetual research. Establishing scenarios where one side is allowed to ?hide the pea? and then claim ?got ya? is stupid and does nothing to enhance effective government. The provision concerning official time for multi-unit bargaining gives the DoD veto over internal Union business with respect to its right to select representatives. 12. Unfair Labor Practices The supplemental misleads by saying that ULPs have not changed. First of all the FLRA will no longer adjudicate ULP cases. They are being replaced by the NSLRB. Furthermore, the issuance of conflicting orders coupled with new rules on negotiability based upon these new regulations will make it possible for the DoD and its Components to avoid accountability by Departmental fiat. Consider that status quo anti relief is not authorized in these regulations. 13. Duty to Bargain and Consult It is curious that in the definition section of subpart I the term consult is eliminated so as not to confuse, but here it is made part and parcel of the duty to bargain. That said, the supplemental makes it clear that the DoD does not intend to bargain over any meaningful provisions which impact on employees working life, home life or anything that a manager, supervisor or political appointee decides is not worth his/her time. The latitude and time frames established for bargaining implementing directives, which have yet to be issued, preclude any meaningful process. They established a situation where, by simple decree, the DoD can make wholesale changes without thoughtful and meaningful dialogue with employees and their representatives. 14. Multi-Unit Bargaining Before there can be any meaningful and effective use of this authority, the DoD and its Components need to get on the same page. 15. Collective Bargaining Above the Level of Recognition The non-ratification provision may be in conflict with DOL regulations and FLRA recognition decisions. Not allowing further bargaining at the level of recognition will lead to inconsistent application of a regulatory provision where local conditions have to be considered. It is not possible to ascertain each and every local condition that can impact on the implementation of an issuance. Since collective bargaining is now defined as some glorified rubber stamping process, instead of meaningful negotiation that results in enforceable collective bargaining agreements, this provision is nothing more than a ?feel good? way of pacifying Congress and the American people by saying that DoD has protected collective bargaining. 16. Grievance Procedures First the DoD changes the definitions of ?grievance? and ?conditions of employment.? Now it limits employees? avenues of redress. Adding exclusions to the grievance procedure does not advance due process. Vital issues such as pay, performance and removal actions need to be subject to the grievance procedures to guarantee due process and timely resolution. This provision sets up a loophole that can be used to eliminate due process, which will inevitably lead to non-correctable abuses of employee rights, government-wide regulations and law. 18. Savings Provision This saving provision does nothing to correct situations that would otherwise have been corrected should the previous law, rule, regulation and/or contract provision remained enforceable. Sincerely,